Gay marriage bluff

Published: Monday, July 8, 2013 5:30 a.m. CDT

To the Editor:

The DOMA decision puts Illinois squarely in the sights of the gay-marriage debate.

My guess is that those of our legislators who’ve successfully straddled the fence on the issue to see which way the wind blows will use the decision as cover for a “yes” vote, justifying it on the basis of inevitability.

Leaving aside for a moment my personal sense of outrage at being judicially determined to be a bigot simply because I oppose gay marriage, there are several other matters that should concern us.

As Justice Antonin Scalia noted in his dissent, both sides in the case were in agreement as to the outcome arrived at by the district court. Therefore, the fact that the appeals court and Supreme Court took the case turned it into one that would have been considered precedent only in the district where it was decided to one of national application.

It decoupled judicial review from the Article III requirement of “cases and controversies” – a standard enshrined in case law clear back to Marbury v. Madison – giving the court leave to review legislation without there being a particular controversy to be decided.

This elevates the court to a position the Founders never intended.

This decision means that every one of us has a larger stake in the marriage debate because our very democratic processes are at stake. The court gave federalism a mere nod in dicta; the General Assembly should call the court’s bluff and vote “no” on gay marriage.